Kain v. Hearyman et al, No. 1:2018cv00047 - Document 6 (E.D. Ark. 2019)
Court Description: ORDER adopting 4 Proposed Findings and Recommendations as its findings in all respects; dismissing without prejudice 2 Mr. Kain's complaint; and certifying that an in forma pauperis appeal from this Order and the accompanying Judgment would not be taken in good faith. Signed by Judge Kristine G. Baker on 2/11/2019. (cmn)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION BILLY J. KAIN, JR. ADC #83093 v. PLAINTIFF Case No. 1:18-cv-00047-KGB/JJV MARTY HEARYMAN, Doctor, North Central Unit, Arkansas Department of Correction; et al. DEFENDANTS ORDER Before the Court are the Proposed Findings and Recommendations submitted by United States Magistrate Judge Joe J. Volpe (Dkt. No. 4). Plaintiff Billy J. Kain, Jr. filed objections to the Proposed Findings and Recommendations (Dkt. No. 5). After a review of the Proposed Findings and Recommendations and Mr. Kain’s objections, as well as a de novo review of the record, the Court adopts the Proposed Findings and Recommendations as its findings in all respects (Dkt. No. 4). In the Proposed Findings and Recommendations, Judge Volpe recommends denying Mr. Kain’s application to proceed in forma pauperis (“IFP”) or without prepayment of fees “because he is a three-striker, as defined by 28 U.S.C. § 1915(g), who failed to demonstrate that he is currently in imminent danger of serious physical injury.” (Dkt. No. 4, at 2). “[A]n otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing.” Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). In his objections, Mr. Kain asserts that he has sustained a shoulder injury and right knee injury, “which was seen by [an] orthopedic surgeon who recommended complete knee replacement . . . .” (Dkt. No. 4, at 2-3). Mr. Kain further states that he has “serious problems with [his] shoulder after four months with it still out of place and it’s affecti[ng] the [rotator cuff]” (Id., at 3). Mr. Kain also states that “[a]ny lifting is out of the question with the right shoulder, no laying on [his] right side, losing feeling when [he] moved a certain way . . . .” (Id.). Mr. Kain attaches documents to his objections, including request and grievance forms, that do not show he was in imminent danger of serious physical injury at the time of his filing. For example, in a response to Mr. Kain’s grievance from April 24, 2018, where Mr. Kain complained about his shoulder injury, a prison official wrote that Mr. Kain previously saw separate defendant Dr. Marty Hearyman, the prison doctor, and “ortho[pedic] surgery was not recommended.” (Dkt. No. 4, at 20). For these reasons, the Court finds that there is no evidence that Mr. Kain was in imminent danger of serious physical injury. Because Mr. Kain has failed to submit the statutory filing fee and has not shown that he was in imminent danger of serious physical injury, the Court dismisses without prejudice Mr. Kain’s complaint (Dkt. No. 2). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order and the accompanying Judgment would not be taken in good faith. So ordered this 11th day of February, 2019. _____________________________________ Kristine G. Baker United States District Judge 2
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
